Testimony from now-dead victim barred in rape trial

January 05, 2011

A Lake County judge ruled today that any testimony from the now-deceased woman who identified Bennie Starks as her rapist in 1986 will be barred from a retrial - raising doubts if the retrial will happen.

Starks, now 50, was released from prison and granted a new trial in 2006 after spending almost 20 years incarcerated for the rape conviction. That was nearly four years after matching DNA samples taken from the alleged victim's body and her underwear were found to not fit Starks' genetic profile.

"This 25-year nightmare for Bennie is very close to coming to an end," said Jed Stone, one of Stark's attorneys.

In making his ruling, Lake County Judge John Phillips pointed to the fact that the defense would not have an opportunity to cross-examine the alleged victim because she has since died. He also stressed his ruling was not an exoneration of Starks.

At his trial in 1986, the woman identified Starks as her attacker, alleging that he pulled her into a ravine and beat, bit and raped her in Waukegan. A Gurnee dentist said he matched Starks' teeth to a bite mark on the woman, and Starks' jacket was found near the scene of the attack.

A dry-cleaning receipt found in the coat's pocket led police to Starks, but he said he had spent the evening in a nearby tavern and had been robbed of his money and coat on the way home.

According to the defense, the woman gave several different accounts of the evening to several different people. In 1986, police were contacted by a case worker from the Illinois Department of Public Aid who told them that the woman admitted she was not raped and had fabricated the allegation to "ensure that the man who attacked her would pay for beating her up." That man was not Starks, the defense said.

Stone said that the prosecution can now do one of two things - appeal today's ruling or dismiss the case.

Lake County Assistant State's Attorney Michael Mermel said that he will have to confer with State's Attorney Michael Waller to determine if there are grounds for an appeal.

"Obviously we are disappointed in the outcome of the ruling, although we find no fault in the judge's thoroughness," Mermel said. "We are still utterly convinced of the defendant's guilt in the reaming charges. Furthermore, because of the judge's ruling, the defendant remains convicted of beating (the victim)."

Phillips also wanted to be clear that he was not overturning Stark's conviction.

"I understand this will make it difficult for the state to go forward," he said. "But this ruling is not an exoneration of Mr. Starks."

And Phillips did rule against the defense in a motion to have Starks' aggravated battery conviction removed from his record.

Both the prosecution and the defense asked Philips to reconvene on Jan.28, at which time the prosecution is expected to determine whether or not it plans to move forward with the case.

Starks, who was at the hearing, left the courtroom without speaking and declined comment.